Union of India (UOI) and Another vs Dalip Kumar

Anil Kumar, J.—The petitioner, Union of India through Secretary, Ministry of Health & Family Welfare, challenges the order dated 7th July, 2009 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in TA No. 444 of 2009 titled Dalip Kumar v. Union of India and Anr. directing the petitioner to treat the respondent covered under CCRS Pension Scheme.

The respondent had filed a petition seeking grant of pension as per the pension scheme in vogue when he acquired temporary status in 1997. Much after the grant of temporary status and continuing on the said post in Group "D".

This is not disputed that petitioner was appointed to the substantive post on 29th June, 2004 and by that time another scheme referred to as "New Defined Contribution Pension Scheme" had been introduced from 1st January, 2004.

The Tribunal has relied on statutory rule like Rule 13 of the CCS (Pension) Rule, 1972 which categorically stipulates that qualifying service of a government servant commences from the date he is asked to charge on a temporary capacity provided that this temporary service is followed without interruption by substantive appointment in the same or in another service or post. The Tribunal noticed that the respondent was granted temporary status which continued and he was appointed in substantive post in Group D and, therefore, under Rule 13 his qualifying service would commence from the date of grant of temporary status.

learned Counsel for the petitioner relying on Central Civil Service (Pension) Rules, 1972 has contended that the rule is applied to government servants appointed on or before 31st day of December, 2003 and it will not be applicable to the respondent as he was appointed to the substantive post on 29th June, 2004.If Rule 13 of the CCS (Pension) Rule, 1972 obligates commencing of qualifying service from the date an employee takes charges of the post, on 29th June, 2004 on appointment after continuous service on the temporary post, it will relate back to 1997 when the temporary status was granted to the respondent. Though new pension scheme was introduced from 1st January, 2004, however, Rule 13 of CCS (Pension) Rules, 1972 has not been abrogated by the new pension scheme salient features which are as under:

Introduction of New Pension Scheme

Government of India have introduced a New Defined Contribution Pension Scheme replacing the existing system of Defined Benefit Pension System vide Government of India, Ministry of Finance, Department of Economic Affairs Notification, dated 22-12-2003 (copy enclosed). The New Pension Scheme comes into operation with effect from 1-1-2004 and is applicable to all new entrants to Central Government service, except to Armed force, joining Government service or order after 1-1-2004.

The salient features of the New Pension Scheme are as follows:

The New Pension Scheme will work on defined contribution basis and will have two tiers Tier-I and II. Contribution to Tier-I is mandatory for all Government servants joining Government service on or after 1-1-2004, whereas Tier-II will be operational and at the discretion of Government servants.

In Tier-I, Government servants will have to make a contribution of 10% of his Basic Pay plus DA, which will be deducted from his salary bill every month by the PAO concerned. The Government will make an equal matching contribution.

Tier-I contributions (and the investment returns) will be kept in a non-withdrawable Pension Tier-I Account. Tier-II contributions will be kept in a separate account that will be withdrawable at the option of the Government servant. Government will not make any contribution to Tier-II account.

The existing provisions of Defined Benefit Pension and GPF would not be available to new Government servants joining Government service on or after 1-1-2004.

The scheme is applicable to all new entrants to the Government service, however, it does not take away the rights of old entrants prior of 31.12.2003. In the facts and circumstances, on the plea of the petitioner, the order of the Tribunal directing the petitioner to treat the applicant covered under CCRS Pension Scheme cannot be faulted. There is no illegality or irregularity in the order of the Tribunal dated 7th July, 2009 requiring any interference by this Court. The writ petition is, therefore, dismissed.